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Kagan 3, Us 3, Virginia 2, Michigan 2, California 2, Arizona 2, Aledo 2, South Carolina 2, Bill Clinton 1, Alvarez 1, Morrison V. Olson 1, Obama 1, Scalia 1, Ruth Ginsburg 1, Warpath 1, Underpaid 1, Feds 1, Roberts 1, Reuters 1, Texas Legislature 1,
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  CSPAN    [untitled]  

    July 9, 2012
    6:00 - 6:30pm EDT  

side or the other. >> i can tell you when it started, in october '86 term. in '87 for morrison v. olson, complaining where the court had gone on the independent counsel statute. the gay rights case out of colorado. he has one just about every term. they are always vintage. it was interesting, though, the idea that he would go outside the record and complain about president obama's order on young people who had been brought here with their parents illegally and are undocumented. he got a lot of negative press on it. i think a couple people suggested he should step down. i think he'll still be doing what he does. >> i thought it was an early trigger or sign that things were going to go bad the rest of the week. usually, when he's on the
warpath at the end of june, it's not just one decision that somebody has let him down in a big way and -- and, there's been a lot of debate over whether scalia's defense have helped or hurt his cause. he's well known t. decents were you have pure scalia. early in his career, he wrote very few majority opinions. he has strong views, clear views on the law. but, boy, he had decents that were zingers that people could remember. the downside is, you have the impression, i think, that he alienate ed some of his colleags over the years. he really lam basted them and it would be interesting to see whether there's lasting ining between him and roberts.
>> speaking of lam basting, the first oral decent in five and a half years came the previous week in the juvenile mandatory life without parole case where he orally decented from justice kagan sitting next to him on the bench. unlike almost like every justice that reads from text on the bench, he was looking upmost of the time. looked like he was reading just from notes. he said they lost their anchors on the cruel and unusual punishment clause. was that a surprise that he was so vigorous and also a surprise in the last five and a half years, that one was the one that pulled his chain so much that it
affects a relatively small number of people and a bunch of juveniles have life without parole. life with the possibility of parole. it's an important decision. it didn't seem like the kind of one to me that would set someone off the way it set him off. >> he's a former prosecutor. the point you made was interesting. there's one thing to do as earlier cases have done is take an entire category of people. no juvenile can be sentenced to death, no matter what. no juvenile committed a non-homicide crime can be sentenced to life without parole. it said you cannot automatically sentence a juvenile to life without parole. you have to take into account their youth. it doesn't sound like a radical proposition and would seem to be in line with what judges do in
sentencing since the beginning of time to take care of the facts and circumstances. it was unusual for him to decent orally. bob wrote about this very nicely, i think. an interesting interplay between justice kagan who announced the majority decision. she usually does that job with great cheer and is clear and is a lot of fun to listen to. here, she sounds grim. she knew what was coming, aledo laid into her in a way that must have been unpleasant to hear. it must have been her first experience on that side. >> she's not learned the stone face yet or to look around the court as if it didn't bother her at all. it seemed to bother her. it's interesting with that case, too, some of us talked about. it didn't seem to be going all that far from what the chief
justice decided in a previous case in which they said everyone, juveniles who did not commit murder should have a chance at parole at some point, could not be sentenced to life without parole and the chief justice wrote, at the time, about how judges needed to have the ability to look at individual cases and make those kind of decisions. he was arguing against a blanket decision on that. but, it was a little surprising, i thought, in that way that it got justice aledo so worked up. >> he was on the receiving end of one of those his first term. i think he viewed it as a matter of statutory construction. you have to file within 180 days. he wrote this opinion and on, i think he was unaware until that
day, ruth ginsburg was going to deliver an oral decent and she delivered a zinger at him in the court that suggested they were blind to the idea that women were being underpaid. they had no idea the men were making a lot more. the court knew that and congress needed to step in and change the law. aledo found that welcome to the supreme court. >> another fight with an oral decent were the plea bargaining cases back in march. i was actually out of the country. i didn't see the decisions of press coverage at the time. it strikes me and i wonder if you agree, after health care, they might be the most important decisions of the term in the sense of how much future litigation they have and how much they'll affect since plea
bargaining is involved in criminal cases, federal and state. i didn't see your reporting on that. did you report it as a preblockbuster case? do you see it as a case that will be viewed as very important in the future? >> we played it big. it may well give rise to litigation. i don't know that as a practical matter, it's not going to get a lot of people redos. you know, you have to prove lots and lots of things about how your lawyer was ineffective in recommending you not take a plea or failing to deliver to you the fact a plea offer had been made and other things would have happened down the chain of events. as far as i know, there's been one case so far where someone got out on this ground. so, maybe it's a big deal but
i'm not sure. it's a big deal symbolically because it brings the constitution to a dark area of the law. the court is really focused on trials, only 3% to 5% of criminal cases are charged. the fact that the court, in this case, is bringing the constitution to bear in that area. as a practical matter, more people aren't -- a recent narrowing of between crack and coe tan sentences to be taken care of. i don't know that the guilty plea case will. >> i think one of the surprising notes of this term, if you look back on it is that the criminal defendants won most of the big criminal cases, which is not the norm. there's a case about the gps, a drug dealer named jones, 9-0
reversal for two different rationals. they said that the government can't use a gps device without a search warrant to track everyone everywhere. it's the juvenile life without parole case that we talked about, the plea bargaining case and the one adam mentioned, the crack-cocaine sentencing case. the criminal defendant one. there's a case from alabama, the guy whose lawyer abandoned him while he was on death row. a case in louisiana where the -- what was that? hidden evidence? >> the problem in new orleans pair risch. >> they hid problems. it's always a surprise in a court like this where the majority of the big criminal cases where the defendant wins. >> they did a strip search on
that. >> the strip search case was nothing. in all these cases david was rattling off, kennedy was in the majority with the liberals. he has a sense of, i don't know how to characterize it exactly right but a sense of fair play is offended when the criminal justice system imposed penalties. >> when you talk about what comes most importantly after health care, i think you have to take account of the message that was so strong in the arizona immigration case where he wrote the opinion that sent a clear message to the states. this is a matter for the federal government. how are you going to regulate anybody within your borders illegally that that's really the domain of the feds. i thought it was a strong signal to arizona and other states that followed up with so-called copy cat laws.
that's only so much you can do. in that one, they let the one stand that could lead to racial profiling. the show me your documents one. it's unclear it would happen on the ground that way. i think you have to look at immigration, given where we thought they might go in terms of obama's power and the government's power. instead, with justice kennedy and the majority deciding in favor of the government. >> and the chief justice. >> yeah. >> we'll be watching as well to see how this plays out. >> that may be another instance of this jump the gun interpretation kind of question where everyone is focused on what joan called the show me the documents provision. they lose on that challenge. you need too read the opinion, get the music of it, understand how limited that holding was and how broad the endorsement of federal power was and other
parts of the decision before you can write properly. >> this came out on the radar because it came out the same day as the health care decision. the court continued their trend on the strong position on the first amendment with the line about military medals. that came out on the same day as the medical. the court said despite how despicable the language is, americans have a strong first amendme amendment right to say what they want to. they said it with the animal crush videos and american flag issues. now they have said it's your first amendment right to lie about whether you have a military medal or not. you can see the trend clearly on the first amendment on here. it happened to come out the same day as the health care decision. it slid under the radar.
>> that one was heard in late february, the alvarez case. it took them awhile to iron it out as it took awhile to iron out the federal communications indecency one where they actually reached the first amendment question. they said there hadn't been notice here. the first amendment case is different from the other issues. they cut across the ideological divide. >> the thing i like about that case in public gatherings like this, it allows know talk of my career as an nba all-star. my various war medals and various things i have done earlier in my career. >> speaking as a former first amendment lawyer might have been more satisfying with a majority rational.
two justices come up with some kind of proportionality test that's hard to make sense of. >> have there been any inside rumors about the health care act about what caused justice kagan to split from what would have been a solid five judge majority on that? >> i have no insight. it's consistent with being a young professor. she did a lot of work that was subtle and nuanced. it's consistent with this concurrence. >> i promised i would make you tell us what's different from your previous job at usa today with your new job at reuters and are you working on another book? >> oh, don't make her talk about that. >> go to
>> is there competition? >> the new book isn't a biography like i did before. it's anatomy of politics looking at what led to the appointment of the first hispanic justice, son owe sotomayer. i tracked her from her birth. it sort of neatly lines up with the trajectory of her life and their progress. it's mostly going to be a political book. i was working on it really intensely, getting lot done when i was at usa today. my new job is a little harder to go home at night and work late on it. it's probably going to come out in 2013. she's doing her own memoir. >> there is competition. >> there is.
the woman herself. since mine is not a biography -- >> what is she now? >> she has said hers is coming out in early '13. i hope it does so i have time to look at what she's saying and modify what i need to modify. mine is more of a political history of how we got there. a chapter of jose who thought bill clinton might try to put him on the court. a chapter on miguel, the controversial nominee to the d.c. circuit under george w. bush. you can await that. switching to reuters, briefly, it is a wire service like jesse worked for a.p., but my work is not quick at the keyboard filing the stories. my job is more to step back and look at the broader trends. it's still, even though i don't have to file in a daily way, it's still the wire.
you have to fill a hole faster than you would for a newspaper all the time. >> anybody else working on a book they want to out? not yet? gentlemen, you did a biography of justice o'connor? are you still in touch with her? >> she's always on an airplane. i said, you know, are you going to be there? she said she had so much planned and she went into the various plans. i asked her if she had an instinct and she declared, i haven't had time to read the statute. do you know which way they are going? no clue, no clue. she was in the courtroom the week before. all this speculation of when it will be handed down. nobody knows until the writing on both sides or all sides in this case is finished. so, she didn't know exactly when it was going to come either.
she could have suspected the way we did it was going to come on june 28th. she was in the courtroom the week before and it made me nervous because i thought uh-oh, why is she here? it wasn't for a big case. she wasn't there for the arizona case. she's doing her civics thing and out there all the time as an active retired justice of the supreme court. >> i did a feature on her last fall and all the things she was doing. when i was interviewing her, joan does such a good impression, she was she was talking i thought she sounded exactly like her. >> i spend way too much time with her. >> i don't know if you guys could see from all the way across the courtroom, but justice steve phens walked in. he seems to be doing very well at 92 and making speeches and giving opinions on cases.
are the current nine active justices all in as good shape as he is? are there any retirements likely to be seen in the next year or two, do you think, for health reasons or otherwise? >> one of the things i did covering the supreme court is i covered south carolina and strom thurman. i'm used to them staying around forever. >> the general view is that the one summer we know we are free to go on vacation is the summer of an election year. no one willingly retires during an election year. so, before we all head out, i'm assuming nobody is leaving this year. no one seems to be in bad health. you know, a couple after the next presidential election, the next year after, people will talk about retirements. fortunately, it's quiet on that front this year. >> the physical renovation of the courthouse has been going on
five or six years now, i guess. it must be nearing completion. has that made a difference to the court or the press? for awhile, the public information office was in a trailer outside. i thought it was great when you all moved back into the building. >> i don't think it affects us. it still bugs justice brier he can't walk up the steps and go through the front door. he bring that is up as often as he can. it doesn't affect our job. >> it does allow you to metaphor of closing the courthouse door from time to time. >> they get to walk out of it. >> not a perfect metaphor. if you look at the building now, they are having to do repair work from the earthquake. a lot of the front of the courthouse is covered with
sheets. they are putting up something that will resemble the front of the courthouse. you can see a pretent supreme court while they fix the real one. so -- >> yeah, the modernization that you mentioned is done. the new work jesse is talking about is a different project. closing the courthouse doors is declared by them, the justice's themselves. it didn't have to do with the modernization. >> le's spend a few minutes on the next term before i open the floor to questions. almost lost, not quite lost in last week's news was the petition filed by paul asking them to look at a case. he's representing the house of representatives in that. we are likely to see important voting rights cases coming up from d.c. an affirmative action case from texas. perhaps the same-sex marriage case from california and others
you are focused on that i'm not. any thoughts on what next term is looking like? >> the case we know is the affirmative action case out of texas. it might bring us full circle. we have a court with five members who are very skeptical of race conscious government practice. while that case has various vehicle problems and comes from a place with a very id owe sin cattic admissions process, that case fisher against texas is a big deal. i would think they will take the case. the federal court struck down a statute. they love to give him the opportunity to get back. i think for same-sex marriage cases, if they had to choose, the case only asks whether they have to track benefits in states where people are already
lawfully married. it's not shoving marriage down the throats of anybody but making the federal law congruent to state law in an area where they traditionally governed. it's a simpler question than the prop 8 one. >> i sure agree with that. on the affirmative action thing, the thing to watch is whether it's texas only or national. i would bet the white plaintiffs are going to win in that case, otherwise, they wouldn't have taken it. texas had this top ten system that top ten graduates of high schools around the state were admitted to austin. they have a good amount of diversity. in addition to that, texas started using race as an emissions factor. the challenge is to the extra
use of race. the court could say as long as you've got diversity through this one system, the top ten, you can't go beyond to consider race. that would be, essentially limited to texas. on the other hand, they could say that any use of race is unconstitutional and we disavow what was said in the michigan case and that would be a big deal to affect universities all around the country. >> it's interesting how different it is around the country. california, i believe has a constitutional amendment that disallows using race in college admissions. it's interesting to me that this case comes from texas. it seems if there was legislature that would rule you couldn't use that race in university missions. it would be the texas legislature. i don't know why that's the place for this case but it makes
it more interesting, i think. >> you know, just a side note since this is a legal audience, texas had urged the court not to take the case. texas is generally a conservative state, a republican attorney general, urging the court not to take the case. they didn't want them to go further. after it was granted, texas hired an attorney. in our group, the higher you know him, upped the stakes in terms of what the representation would be. he won the name els case we were talking about. in some ways to have someone with the conservative credit of having been in the w. bush administration and coming in a very nonideological way will help texas' case as much as it
could. >> he was on the winning side of the michigan case. he did a very good job in lawyering through a difficult case involving christian legal society at a law school and whether it could bar gay students from leadership positions. i agree with joan that having him in the case makes it all the more interesting. >> let's open up the floor to questions. i'm going to give up my mic. this is arnold. >> i have a real quick question. with regard to the health care decision, not so much the health care decision itself, the medicaid part of the decision that was struck down. the reason i ask this is in my
law practice, i deal a lot with severely disabled children. i'm also announced i'm going to run for governor of virginia as a democrat, at least in the primary. from a practical point of view, i don't see most governors turning down the medicaid expansion. maybe some states, like virginia, if a republican gets elected, i could see that happening. i don't see the majority of governors turning that down. >> if the next person could head to the mic, we'll answer this, then get to the next one. >> if you were a governor, you could say well, on principle, i don't want to expand.
then you have to explain, i assume, to the public. i'm turning down millions of dollars in federal funds to pay for health care for poor people? if i don't do it, our tax money is going to other states getting it and we are not. so, i would think as a practical matter, even if the states didn't like the expansion, somewhere down the line, they are going to say well, okay. if you are paying 100% of the cost, we'll take the money. >> 100% in the early years then it goes down to 90% and the 10% is a budget breaker for many. florida announced they are going to turn it down. >> south carolina as well. i also don't think -- i think it's a decision that doesn't have to be made at this moment. it's easier to say we are not going to do it. >> this is a great blue state/red state divide. the blue says sure, we'll take the money.
the red says we're not going to take the money. blue says be our guest, if that's what you want to do. >> i wonder, if a couple states opted out, maybe there's not a big impact. if there's a patch work of being spread out. at some point, presumably, maybe the states losing their old, sick people will say -- >> you don't mean old. >> old and/or sick. people who need medical care. >> they already have it. >> right. >> poor people and we're talking families that make up to 25 grand a year or individual that is make up to 15 grand. they are poor people at the 133% level. they could lose out. i think those poor people would be wise to move to a state where they get medical care. >> it's h

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